Stephanie Washington v. Carlos Perez, Olympia Trails & Olympia Trails Bus Company (072522)
219 N.J. 338
| N.J. | 2014Background
- In December 2006 Washington’s car was struck by a bus driven by Perez; she had a prior 2003 neck injury and later was diagnosed with a cervical disc herniation and sought ongoing treatment.
- Plaintiff’s treating orthopedic, Dr. Rosen, opined the 2006 crash aggravated her preexisting cervical condition; defendants previously disclosed two defense experts (Drs. Sharetts and Hayken) whose reports also acknowledged injury from the 2006 accident.
- Defendants identified those experts in pretrial disclosures but did not call them at trial; plaintiff introduced Dr. Rosen’s videotaped testimony and argued defendants hid their experts.
- At plaintiff’s request the trial court gave an adverse-inference (Clawans) jury instruction allowing jurors to infer the uncalled experts’ testimony would be adverse to defendants.
- Jury returned a large verdict for plaintiff; Appellate Division reversed, holding plaintiff failed to satisfy Hill factors and the Clawans charge prejudiced defendants; Supreme Court affirmed and remanded for new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an adverse-inference (Clawans) jury charge was proper when a party declines to call previously disclosed expert witnesses | Washington: defense experts were identified and within defendants’ control or effectively unavailable to plaintiff; their absence justified a Clawans charge and any error was harmless | Perez: Hill’s four-factor test was not applied; defense experts were not peculiarly controlled by defendants, could have been called by plaintiff, and their testimony was cumulative | The Clawans charge was improperly given and reversible; when missing witnesses are experts (not fact witnesses) a Clawans charge is rarely warranted; Hill factors did not support the charge here |
| Applicability of Clawans/Hill framework to expert witnesses | Clawans/Hill should apply and favor plaintiff because defendants announced experts and did not produce them | Hill’s factors show experts differ from fact witnesses (disclosure, reports, depositions, potential availability to both sides), so Clawans rarely applies to experts | Hill’s four-part test governs; courts must analyze each factor on the record and be cautious before giving adverse inference for uncalled experts |
| Whether plaintiff could have called defense experts after disclosure | Plaintiff: experts required compensation and could refuse; thus not practically available to plaintiff | Defendants: disclosure and reports put plaintiff on notice and Fitzgerald allows adversary to call designated testifying experts | Court: plaintiff had notice of experts and could have attempted to call them; first Hill factor weighs against adverse inference |
| Prejudice and harmless-error analysis for instructional error | Plaintiff: any error was harmless in light of the evidence | Defendants: the charge, coupled with plaintiff’s closing, placed the court’s authority behind the inference and caused palpable harm | Court: error was not harmless; the charge and summation improperly suggested defendants withheld harmful testimony, requiring a new trial |
Key Cases Cited
- State v. Clawans, 38 N.J. 162 (N.J. 1962) (establishes case-specific caution in giving adverse-inference charge and limits when it is improper)
- State v. Hill, 199 N.J. 545 (N.J. 2009) (adopts four-factor test and strict notice requirement for Clawans charges)
- Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286 (N.J. 2006) (discusses that designated testifying experts and their reports are discoverable and may be called by adversary)
- Graves v. United States, 150 U.S. 118 (U.S. 1893) (classic statement supporting adverse-inference principle when a party peculiarly can produce a witness)
- Wild v. Roman, 91 N.J. Super. 410 (App. Div. 1966) (notes the trial court’s authority behind a Clawans charge can amplify prejudice to the non-producing party)